In August this year, the Polish Ministry of Justice published a draft law very significantly amending the Act on Liability of Collective Entities for Criminal Offences. If this bill enters into force, it will completely change the rules for incurring this type of liability. This blog post is devoted to the idea of adding civil claims to the Act. In essence, they want to give a victim a possibility to bring an action against a collective entity. The victim will be able to bring this action before this court. Then, the court will rule on the liability of this entity under the Act. That court will then hear that action of victim’s claims together with the issues relating to the liability of the collective entity for breach of the amended Act.
Two points of view
It appears that the current solutions of the draft in the described scope are not satisfactory neither for the wronged parties nor for the collective entities. For the wronged party, a better solution would be to submit a short and informal request for reparation of damages by the collective entity. This is much simpler than having to write a lawsuit and prove its claims in criminal proceedings.
The problem for the collective entity, on the other hand, is the lack of precision of the draft. It is very dangerous in that it raises doubts as to whether the victim can obtain double damages. Indeed, the collective entity should avoid liability for the damage if it has already been repaired by the perpetrator. Unfortunately, however, the draft does not resolve this entirely unequivocally.
Indeed, the victim may also file a claim for reparation of damages against the perpetrator of the crime. This claim would be resolved in criminal proceedings concerning the perpetrator’s liability. At the same time, victim may also file a claim against the collective entity responsible for committing the offence. However, the scope of the claim directed against the perpetrator and against the collective entity are not entirely identical. Indeed, the Project and the Criminal Code use different terms in this respect.
The court adjudicating the liability of the collective entity may disregard the claim of the victim only in one situation. That is if it relates to the same claim that is the subject of another proceeding or another judgment. Thus, the victim has two types of claims – one against the perpetrator and the other against the collective entity. If it is considered that those two claims of the victim are not identical, then both claims can be upheld.
This is a fundamental error in the draft. One can only hope that the legislator will eliminate it in the course of further work on the draft.
The full version of the arcticle is available in polish here.